RALEIGH – There is no perfect way to select fair-minded, capable, and independent judges – unless you know of some brilliant, unbiased Martian we might tap to do the honors.
Appointing judges is problematic. Look at some of the nincompoops and rogues who have made their way to federal judgeships over the years. But electing judges is also problematic, particularly when special interests play a dominant role in campaigns or voters lack sufficient data with which to make an informed choice.
North Carolina has actually managed to discover the worst possible combination of judicial-selection rules. We still elect our judges. But thanks to campaign-finance “reforms” passed a few years ago we now limit their ability to raise and spend enough money to run effective campaigns. Voters are forced to subsidize these campaigns with tax dollars but are not informed of the partisan affiliations of the candidates.
As a result, many state judicial races have become little more than sham elections. Most political observers agree. But they don’t agree about what to do in response.
Some want to get rid of the “sham” part, by restoring party labels and repealing North Carolina’s onerous and unconstitutional campaign limits. Others want to get rid of the “elections” part, by moving to an appointive system that includes voter participation only in subsequent retention elections, not competitive elections featuring multiple candidates.
Both elective and appointive models have their selling points. Given that states differ in their models, you might think that comparative research would yield persuasive results about which system works best. But as far as I can tell, there is no clear-cut answer. One problem is that “best” is itself debatable. What makes one state’s judges better than another’s? How do you measure that?
Right now, however, these questions are moot. There is little public support for an end to judicial elections. Given that North Carolinians appear reluctant to give up their right to elect judges, the best approach right now would be to fix the obvious flaws in our elective system – by restoring party labels and abolishing taxpayer funding of campaigns – while saving discussion of an appointive system for a future time when the public might be more inclined to it.
In the meantime, I have a word of advice for fans of judicial appointment: if you ever want to persuade North Carolinians to give up their right to elect judges, you need to ditch any talk of setting up a commission to nominate or vet judicial candidates. Despite an attempt to “balance” the lawyers with non-lawyer members, a commission would inevitably become dominated by politically active attorneys, who tend to be liberal Democrats. Republicans, independents, and conservative Democrats wouldn’t and shouldn’t stand for turning over that kind of power to an unelected, unrepresentative cabal.
If judicial appointment is what we truly want, then the elected governor of the state ought to be the one doing the appointing – perhaps with oversight by another elective branch, the General Assembly. Naturally, governors consult legal advisors whenever they need to fill a judicial vacancy. But they are soliciting advice, not asking for permission.
They shouldn’t have to. Judicial appointment is a hard-enough sell already. Do you want to make it impossible?
Hood is president of the John Locke Foundation.